Pat Rabbitte (Dublin South West, Labour)

I am glad to have the opportunity to speak on this long-awaited Bill. The Bill has had a very rocky gestation, going back more than 15 years, for reasons that are well known to the Minister. The arrangements that it now facilitates deserve the opportunity to be monitored in practice to determine how they work out.

The Bill before the House is decoupled from the privacy Bill, which had been threatened by the last Government. It settles for an independent press council and press ombudsman, guided by a standard code of practice. However, the recent resignation of Mr. John Horgan from the Press Council, which was referred to during the debate, probably gives some pause for reflection in terms of whether what we have really agreed is an independent press council as distinct from a self-regulating press council. Mr. John Horgan, who is not to be confused with the imminent occupant of the position of Press Ombudsman, is a distinguished former chairman of the Labour Court. Presumably, it is the particular skills and experience gained in that role that caused him to be on the Press Council in the first place. The remarks he has made in public raise some interesting questions and if I have time, I will return to them later.

I am bound to say that for the Labour Party, the overriding consideration must be the imperative of a press that is free to inquire, report and comment, subject only to the best values of journalism. Freedom of expression is not something that should be in the gift of politicians. At the same time, however, I agree with the observations of Baroness Onora O'Neill that much of what purports to be journalism is no such thing and seems intended simply to make or increase profits for media owners. Members on all sides of the House will understand what she means by those remarks.

In terms of the decision of the previous Government to link this Bill inextricably with the privacy Bill, it appears from a sequence of recent cases in the privacy area that a new jurisprudence is emerging. Perhaps, as legislators, we ought to be prepared to leave that issue to the courts.

The question traced by almost everyone I have heard speak to the Bill so far goes back over the emergence of this Bill over such a long period, with the main formative influence being the report of the Law Reform Commission. Obviously the issues involved are sensitive and important for our society. Undoubtedly, opinion has been divided within and outside the House and indeed within the Government. Having regard to that backdrop it is something of an achievement to now have before the House a Bill which after such prolonged argument and consultation has attracted a substantial measure of support from all sides.

I do not think anybody disputes the fact that the law as it stands is deficient in a number of respects and that we lag behind best practice. There are widely varying views about the complex issues that are involved in reforming the law. It is interesting to read the programme for Government for 2002 and see the very wary commitment given therein by the parties comprising that Government where they made very plain that the commitment to reform the defamation law was in the context of an accompanying Privacy Bill. The impression given was that that was very carefully framed, that only the simultaneous implementation of a Privacy Bill would bring at least some Ministers on board in terms of the refurbishment of the defamation law. Indeed — and this has never been contradicted — some Ministers only came on board on the basis that there would be an accompanying Privacy Bill put to the House. In all fairness, it is probably the case that this view was shared in wider circles than just the Ministers around the Cabinet table who said "No" to the then Minister, Mr. McDowell, when he sought to reform the defamation laws. This was a view which had some sympathy among other of our colleagues here and outside the House. I was struck by the fact that when the new Minister for Justice, Equality and Law Reform, introduced this Bill, he went out of his way, it seemed to me, to say that he, "wanted the House to note the fact that the Privacy Bill remains on the Seanad Order Paper, having been approved by the Cabinet." When the Minister comes into the House he will have the opportunity to correct me if I am wrong but the only inference to be taken from this is that the Government reserves the right to revive the Privacy Bill and if it is dissatisfied with the performance of the arrangements put in place by this legislation, to bring that Bill before the House. To some extent, we are in the territory of "suck it and see" with the Bill before us now.

I acknowledge that whereas privacy and defamation are indeed connected, they are not the same thing. For example, the broadcast media is governed by its own legislation which places an onus on the broadcasting media to ensure that the privacy of the individual citizen is not unfairly intruded upon. The Constitution gives a right to freedom of expression and, although unenumerated, a right to privacy on the other hand. It must be conceded that in general, Irish newspapers have not aped the worst excesses of the kind of intrusive coverage of personal lives one sees across the water. This is not to say there have not been ominous straws in the wind in recent times in Ireland, motivated, it is alleged, by commercial competition, whereby the tradition of Irish newspapers is coming under challenge.

There have been some notorious lapses of taste and gross intrusions into the private lives of citizens. I presume these were considerations in the minds of those Ministers who dissented from the then Minister's Bill. The overriding consideration must be the imperative of a press free to inquire, report and comment, subject only to the best values of journalism. My colleague in the other House, Senator Alex White, wrote recently, "Freedom of expression is not something that should be in the gift of politicians" and this is something we must accept.

I raised earlier the public remarks of John Horgan, former member of the Press Council of Ireland, which gave rise to the question in my head about whether we have now opted for a system of self-regulation, as distinct from independent regulation. It is interesting that this debate started out on the basis of the demand for a statutory press council. The more one examines this proposal, the more I think the correct judgment has been made. It is worth waiting to see how the proposals enabled by this legislation work out in practice. There is a danger that if there were statutory powers the Government of the day, any Government, may be minded on occasion to unreasonably intervene and to give direction. We have embarked on this system. A majority of members of the Press Council of Ireland seem to me to be selected by the industry itself and I wonder if this is a good idea. When we are engaged in the argument about independence versus self-regulation, it would be easier to persuade us of the independence of the regulation if it was clear that a majority had not been selected by the industry.

I look forward to hearing the Minister's response to the arguments in his summing up. I would like to hear the Minister's view on the arguments advanced by John Horgan which he spells out in what seems to be a temperated and considered piece in The Irish Times at the weekend. He argues that if we really are to have openness and transparency then the council should be prepared to publish dissenting judgments. I would like to hear the Minister address that issue. As Mr. Horgan put it, there is no point in holding up the facade of unanimity if there are minority views. Why should they not go into the public domain as well?

Let us take the famous controversy a couple of years ago of the publication of cartoons, deemed to be offensive to the Muslim community. If they were published in this country and if there was a Muslim member of the Press Council, can it reasonably be said there was a unanimous view of the press council to uphold the publication of those cartoons? In all probability the Muslim member might reasonably be expected to object. Is there any reason we should not know of that objection? Is it purely institutional protection that causes the Press Council to want to present the image of unanimity? I think that is a reasonable question, and I do not think it would diminish the Press Council in any way. Rather, it would enhance it. I say that against a background of the only case I know of which concerned a Member of the House. In that instance the Press Council did function. It did its job and the newspaper concerned published, with similar prominence, the apology even though one might argue that, strictly speaking until this legislation was enacted, it was not necessary for it to do so. I acknowledge that fact. Given that we are all required to observe the first national language, as they say tús maith, leath na hoibhre. We can reasonably say that about the decision in that case.

Put simply, the first reason the new Defamation Bill is needed is that the law as it stands is too complex and too cumbersome. Obviously, there are other major reasons for reform because there are certain aspects of the current law that are open to criticism on the grounds of failure to comply with international law and constitutional requirements. There is no doubt that cases are expensive and time consuming. Given the cost involved, they are way beyond the reach of ordinary citizens. For participants on both sides, the stakes committed to are enormous.

I draw attention to a couple of items in the Bill that I would like to see addressed and on which I would like to hear the Minister's views. Unlike most areas of civil litigation, defamation law remains dominated by the pleading process and the exchange of written argument between the parties prior to oral hearing. The process is meant to clarify and narrow down the points at issue. In a defamation case, pleading becomes a trap for the unwary. Cases can be won or lost on pleading points. This is all the more reason for the lawyers involved to charge heftier fees than usual.

The first purpose of reforming legislation, therefore, should be to ensure that more cases are heard and decided on their merits relatively expeditiously in the most convenient and appropriate venue and at a comparatively affordable price. Two disappointing features of the Bill require examination. First, we should use the opportunity to abolish any and every rule of law or practice in respect of the taxation of costs in defamation actions that provide for the taxation of legal fees in such actions at a rate higher than the rate prevailing in actions in tort generally. At present, as a general rule and without considering the complexity of the particular case, costs in defamation actions are taxed far more than the rate applicable to any other civil action.

Second, the Civil Legal Aid Act 1995 lists designated matters in respect of which legal aid may not be granted by the Legal Aid Board. That Act was based on the pre-existing legal aid scheme. The refusal to cover defamation was based on the prim notion that suing for defamation like polo and fox-hunting is an esoteric and expensive pursuit to be contemplated only by those who can afford the cost and that it was far from the libel courts that the poor were reared. That attitude is completely at variance with the constitutional obligation of the State to vindicate the good name of the citizen. Given the constitutional status of the right to one's good name, this exclusion is unjustifiable and this restriction should be deleted. There are more than enough safeguards in the Act to ensure the Legal Aid Board is not required to fund frivolous or spurious actions.

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